Victim fears for safety

Albany judge threatens to jail woman for refusing to testify against defendant

By ROBERT GAVIN Staff writer

Published 1:00 am, Wednesday, July 14, 2010

ALBANY -- When Donald Perry and a co-defendant faced robbery charges in 2008, both accepted plea deals in midtrial after the victim became reluctant to testify and changed his story.

On Tuesday, as the 21-year-old Perry stood trial for an allegedly violent home invasion in the South End, history began to repeat itself.

The alleged victim -- a 23-year-old single mother -- took the witness stand late afternoon after not appearing in court for most of the day. Then she told jurors she could not identify the man who allegedly showed up at her door on Jan. 5.

"I do not want to go through with this," the woman said upon questioning from Assistant District Attorney David Gonzalez.

When the prosecutor pressed her on the identity of the man, she shook her head no.

"I cannot recall," the witness said repeatedly.

In opening statements, Gonzalez told jurors that on Jan. 5, Perry identified himself, kicked open the woman's door and beat her in front of her infant child, now 2 years old. He said the break-in was retaliation; the woman had refused to allow a friend of Perry's into her home two days earlier while being chased by police. He said Perry, who placed the woman in a choke hold, asked her at one point, "Why didn't you let my (expletive) in?"

In court Tuesday, Gonzalez kept asking the woman to tell jurors what the man at the door said upon arriving. She continually refused to answer,

"I don't understand why questions are still being directed at me," she said. "Excuse me, your honor. It seems as if you guys are forcing me to testify."

Acting Supreme Court Justice Dan Lamont, in turn, informed the woman that at this point in the case, "It's no longer your call. As you put it, we are forcing you to testify. You're absolutely right."

The woman refused to continue testifying, at one point saying, "I might have the court in my corner today, but when I go home, who's in my corner? Nobody."

Gonzalez asked the woman if she recognized a man in the back of the courtroom. The prosecutor also asked her if she had ever spotted that same man with Perry. The woman said she had recognized the man from the neighborhood but not in the company of Perry.

When Gonzalez continued to ask the witness about the man at her door Jan. 5, she maintained she could not remember.

When deputies escorted Perry out of the courtroom, the defendant flashed a smile.

At the conclusion of court, outside the presence of the jury, Lamont found the woman in contempt of court for not answering the question from Gonzalez. He also indicated she could face a potential perjury charge. He sentenced her to 30 days in the Albany County jail, but said he would suspend the sentence if the woman decided to fully testify this morning.

Moments earlier, when the jury was also not present, the woman told Lamont, "I'm honestly scared."

Both Gonzalez and P.J. Blanchfield, an attorney assigned for the woman, asked the judge to not fine the woman or sentence her to incarceration for refusing to testify. Gonzalez noted "some pressure" on the woman in her neighborhood.

Lamont said he understood the position of the woman but said without her testimony, the case would be a "colossal waste of time." He noted that dozens of jurors were screened for the case on the court's time.

John Doherty, the defense attorney for Perry, asked for a mistrial based on the woman's brief testimony. Lamont declined it. In his opening statement. Doherty had noted that two teenagers were inside the apartment during the alleged home invasion. He questioned whether either would testify.

While no gang ties were mentioned in the prosecution's opening argument, Lamont made references to the South End-based Original Gangsta Killas street gang, or "OGK," in his remarks from the bench. In July 2008, Perry and codefendant Nasir Stratton went to trial charged with robbing a man outside the Twilight Lounge in Albany early on June 22, 2007.

When the victim, a convicted drug dealer, changed his story on the witness stand, Perry pleaded guilty in mid-trial to attempted robbery in exchange for a two-year sentence. Stratton, who admitted to misdemeanor possession of stolen property, received time already served.